What Is Executive Privilege And Why Is Bush Threatening To Use It?

Attorneys' firing has brought rarely invoked presidential power to light.

As the scandal over the firing of eight U.S. attorneys continues to unfold — and ensnare more members of the Bush administration — President Bush has threatened to use his powers of executive privilege to block any attempts to subpoena key members of his Cabinet to testify before Congress.

But what, exactly, is executive privilege, and when can a president pull out this trump card?

What It Is

EP is a power claimed by the president and other executive-branch members to refuse search warrants and probes on the principle that they might reveal information that the president has a right to keep secret if he wishes to get useful counsel from his staffers. "It's the same as attorney/client privilege," explained Peter Smith, a professor at George Washington University Law School. "In that if you are arrested and tell your attorney something, you don't want that attorney to be forced to testify about what you said. In this sense, the president wants to say to an adviser, 'Tell me very honestly what you think might be the consequences of this decision.' That person might be reluctant to say something for fear it would look bad later, which keeps the president from getting the kind of candid advice he's seeking."

One of the reasons the threat of Bush's EP has confused and exasperated so many in Washington is that if the president was indeed in the dark about the dismissals as he has stated, why has he been so fast to say he would invoke this rarely used presidential power if pressed by Congress?

EP is not mentioned in the U.S. Constitution, though it has come to be considered an unspoken part of the separation of powers doctrine, which calls for each branch of government to operate with some freedom from the supervision of the other branches. It has been used by presidents beginning with George Washington and Thomas Jefferson and was most famously tested by Richard Nixon during the Watergate scandal.

In 1974, the Supreme Court had to rule on President Nixon's refusal to turn over audio recordings of Oval Office conversations being sought by Watergate special prosecutor Leon Jaworski; the prosecutor was seeking criminal charges against members of the administration. In United States v. Nixon, the court ruled that there was a valid need for the "protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties." It added, however, that the president doesn't have an "absolute privilege" against subpoenas when it comes to criminal cases and even weaker privilege when it comes to nonmilitary/nondiplomatic discussions.

Why It's Being Talked About Now

The scandal that has erupted is over the Justice Department's firing of eight U.S. attorneys last year, which detractors have claimed took place because the attorneys were not sufficiently loyal to the administration. The political appointees, who are supposed to serve four-year terms, can be dismissed at the president's discretion and without cause.

Part of the scandal revolves around the roles the president and attorney general Alberto Gonzales may have played in the firings. While Gonzales initially said he wasn't involved in the discussions, his former chief of staff, Kyle Sampson, has stepped down over his involvement, and recent documents uncovered by The New York Times suggest that Gonzales was told of the dismissal plans at least twice before they were carried out. Sampson is scheduled to testify at a Senate hearing on Thursday, while Gonzales aide Monica Gooding has invoked her constitutional right to refuse to testify.

The apparent conflict between the record and what Gonzales has said has led to repeated calls for him to step down from both Republicans and Democrats, as well as suspicions on the Democratic side that the firings were orchestrated all along by the White House and particularly by top presidential aide Karl Rove. As a result of the murky facts surrounding the case, members of Congress have threatened to subpoena Rove and Gonzales and others in the administration in order to get the real story under oath. Bush has repeatedly defended Gonzales and refused requests to have him formally testify under oath and on the record, saying it would violate his executive prerogative.

Smith said the case for EP in this instance appears to be shaky, at best. "My personal view is that in the court of public opinion, the president has a weak hand to play," he said. "The main reason is, rightly or wrongly, the public suspects that something unseemly happened that the president signed off on — or actively participated in firing federal prosecutors because they refused to investigate political opponents."

EP cases rarely go to a court of law because Smith said they're usually hashed out by the president and Congress before they get that far. But we can expect some serious pressure on the president to back down and allow the testimony under oath, unless public opinion changes and Congress is forced to backpedal and agree to a lesser form of testimony.